Before MARQUARDT, P.J., KNUDSON, J., and DAVID W. KENNEDY, District Judge,
assigned.

KNUDSON, J.: Donald D. Jayne appeals from the judgment of the district court
concluding that Kennedy & Coe, L.L.C., did not breach its contractual obligation owed to
Jayne.

Jayne is the successor in interest to an employment procurement contract entered into
between Key Employment Services (Key) and Kennedy & Coe (employer). As a result of
Key's efforts, Robert Keck was hired by the employer but never actually went to work for
the firm. Jayne contends entitlement to a fee under the contract; the employer contends no
fee is owed.

The underlying facts are not in dispute. After Key located and referred Keck to the
employer, he was hired. However, within 30 days and before Keck actually started to work,
the employer's needs were altered, with no alternative position acceptable to Keck. The
employer and Keck mutually agreed to terminate the employment relationship, and Keck was
provided with a $10,000 severance package. Thus, the question: Under these circumstances is
Key entitled to its referral fee?

The schedule of charges in the referral contract state, in material part:

"1. The charge for our services is earned when an individual referred by us accepts an
offer of employment
by an employer . . . within one (1) year from date of last referral or discussion of the individual.

. . . .

"4. Our service charge is due and payable when earned. . . .

"5. GUARANTEES: Placements are guaranteed under the following circumstances:
1) Termination is
the fault of the employee, 2) The account is paid per the invoice terms, and 3) Strict adherence to
this
entire agreement.

A. Placements are guaranteed for a one hundred and eighty (180) calendar day period
after
employment commences. Under the conditions of the guarantee the service charge will be
.56% of the original service charge for each calendar day of employment.

B. There is no charge when termination occurs within the first thirty (30) calendar
days of
employment."

The issues were submitted by a stipulation of facts and documentary evidence. Jayne
argued under the written terms of the referral agreement that a commission of $14,850 was
earned when Keck accepted the employer's offer of employment. The district court found
the mutual dissolution of the employment relationship to be a termination within the
meaning of paragraph 5B of the referral agreement and, therefore, no charge was owed. In its
order denying Jayne's claim, the district court entered two findings crucial to the issue now
on appeal:

"It matters not whether the dissolution of employment was the fault of the candidate or
the defendant,
it was mutual. Therefore, the candidate participated in the termination. Such is deemed 'fault' by
this Court.

"The contract as drafted by the plaintiff specifies that if termination (no caveat is specified)
occurs
within thirty days then there is no fee to the plaintiff."

On appeal, Jayne contends the above findings are inconsistent with the terms and
provisions of the referral agreement and the district court's judgment should be reversed.

We begin our analysis by stating general rules of construction applicable when
interpreting written contracts. A contract that is plain and unambiguous on its face must be
enforced according to its own terms. Wagnon v. Slawson Exploration Co., 255 Kan.
500, 511,
874 P.2d 659 (1994). An ambiguity does not appear until the application of rules of
interpretation to the instrument leaves it genuinely uncertain which of two meanings is the
proper meaning. City of Manhattan v. Galbraith, 24 Kan. App. 2d 327, 332, 945
P.2d 10
(1997). Where the contract is ambiguous or uncertain, intent of the parties is ascertained by
considering all language employed, circumstances existing when the agreement was made, the
object sought to be obtained, and other circumstances which tend to clarify the intention of
the parties. Universal Motor Fuels, Inc. v. Johnston, 260 Kan. 58, 63, 917 P.2d 877
(1996). If an
ambiguity exists, it is construed against the drafter. Weber v. Tillman, 259 Kan. 457,
476, 913
P.2d 84 (1996).

We are unable to accept the district court's interpretation and application of employee
fault under paragraph 5 of the referral agreement to include acceptance of a severance package
by an employee jilted before reaching the altar. Fault is the breach of a legal or contractual
duty. We fail to discern any fault by Keck. The employer made the unilateral decision to
terminate Keck. Understandably, the employer offered and Keck accepted a severance
package to go quietly into the night. We agree that "fault of the employee" as provided in the
referral agreement is unambiguous, but we conclude that the district court's finding that the
termination was the fault of Keck is not supported by the evidence.

We also do not agree with the district court's finding that paragraph 5B of the referral
agreement precludes recovery by Jayne. Paragraph 5B is structurally subordinate to the
general conditions in paragraph 5 and should not be interpreted in isolation. See City of
Manhattan v. Galbraith, 24 Kan. App. 2d at 332. We believe the district court erroneously
interpreted paragraph 5B as a free-standing provision unrelated to the general conditions in
paragraph 5. "Termination" can only be interpreted within the context of the entire
paragraph requiring that termination must be the fault of the employee, a condition we have
already noted was not met.

Jayne has requested an award of attorney fees and court costs. The referral contract
states: "Delinquent accounts are subject to paying finance charges, and all collection charges
including reasonable attorney fees and court costs." We conclude Jayne should be granted an
allowance of $3,150 for attorney fees incurred on appeal and $149.16 for court costs.

The judgment of the district court is reversed; a money judgment is to be granted to
Jayne for $14,850 plus interest at the contract rate of 21% per annum from and after
September 6, 1994 until paid; judgment is granted to Jayne for attorney fees and costs
incurred on appeal totaling $3,299.16; and this case is remanded to the district court for a
determination of attorney fees and costs to be awarded Jayne for prosecution of this action
before the district court.

MARQUARDT, J., dissenting: I respectfully dissent from the majority's holding.